Theresa in the Wonderland of the Hallett review

The plainly rushed Hallett Review and the British government response to it raise as many questions as answers. They expose not a carefully planned discreet operation but a terribly improvised muddle in which the  left hand ( the  PSNI)  did not know the full de facto amnesty effect of what the right hand ( the NIO)  was doing, and with nobody really  holding onto  the wriggling baby.

The longer term inquiry by the Commons Northern Ireland Select Committee may go on for the best part of a year –virtually until the end of the Parliament. The difference between the two is that NIAC will want to interrogate officials in public and the government may be reluctant to comply.  In any event the row has plenty of life left in it about the status and impact of the” comfort  letters.”

On what was supposedly above the radar, Hallett has pages of tables in Appendix 9 which can hardly be said to add up to the degree of disclosure the NIO was claiming before Hallett was set up, unless you’re particularly skilled at old fashioned Kremlinology. Plainly someone was hard at work compiling the NIO defence. If only they’d all been as good at  keeping contemporaneous records over matters like the royal prerogative of mercy and an audit of prison sentences, which I bet doesn’t exist  and may now  be impossible to compile.  Barney Rowan has obligingly summarised what he calls “the jigsaw” of clues about the administrative scheme.

Now the unfortunate secretary of state Theresa Villiers has to decide what to do about the letters beyond discontinuing the system. Retrospective cancellation would mean a huge row with Sinn Fein and possibly worse, even though the  letters may be valueless- truly a Theresa in Wonderland situation. Failure to do so means ever outraged unionism. More seriously than either is the effect on possible future cases, as the NIAC chairman Laurence Robertson told MPs during exchanges when the Hallett review was published last week.

When we look below the headlines, we see that it is very critical of what went on. Lady Justice Hallett refers to evidence given to the Select Committee by Assistant Chief Constable Drew Harris, who said that “95 of these individuals”—those who had received letters—

“are linked in some way or other to 200 murder investigations.”

He later corrected that figure to 295. He added:

“But that linkage may only be intelligence.”

Given the possibility that that intelligence could turn into evidence relating to any of those people, it is rather worrying that Lady Justice Hallett says:

It is not clear to me…what would happen if fresh evidence should come to light. It is arguable…that this does not sufficiently provide for a change in circumstances.”

Have not this scheme and the way in which it has been run created a very worrying situation in Northern Ireland in respect of bringing people to justice and bringing closure to the victims whom we rightly remember today?”

It is not clear that the stay in the John Downey trial sets a precedent, as has been noticed by that incisive commentator Douglas Murray   ; just as the NI DPP’S claim that the comfort letters are without value worthless remains to be tested. The authorities must all be praying that no significant new evidence emerges in any of these cases. Otherwise the DPP will be forced to choose between a trial and “ the Shawcross doctrine “ – ruling that a prosecution would not be in the public interest, something which he has said should be a political decision.

Behind “the administrative scheme” lies a jurisdictional confusion referred to in Hallett. How is it to be sorted?  Dual responsibility between Westminster and Stormont should apply in future. But how is it to be exercised between the jurisdictions, especially  if new laws or at least arrangements are deemed necessary, compounded by the fact that the NI Executive is bound to be in deadlock over this and many other issues? The most likely result surely is the status quo. No more letters and leave the future to case by case.  What further are the chances of (a) replacing the PSNI’s historical cases review role with a new historical cases investigative unit unless imposed by the British government under reserved national security powers; and (b) dealing with the past more comprehensively?

Hallett says:

2.73 Opinions vary on whether the administrative scheme should have been devolved to the Northern Ireland Executive in April 2010 as part of the devolution of criminal justice and policing. Anything that is not expressly ‘reserved’ or ‘excepted’ is considered to be devolved. Primarily, the argument turns on whether the administrative scheme is part of the ‘normal criminal justice process’ and therefore devolved, or whether it relates to ‘national security’ (i.e. terrorism) and is therefore ‘excepted’. If ‘excepted’, only primary legislation in Westminster can transfer it.

2.74 In any event, when the scheme continued to be administered by the NIO following the devolution of criminal justice and policing (in 2010), the Northern Ireland Minister of Justice (and possibly others) should have been informed of that fact.

2.75 Consideration of whether the scheme was devolved in 2010 was yet another missed opportunity for someone to take control of the scheme and provide structure (including a review process for decisions taken to date).

Villiers said in Commons exchanges:

A debate has raged on the exact position of the scheme in terms of devolution. I discussed the matter with the Secretary of State for Justice this morning. I think that the best way of putting it is that the Northern Ireland Office will not shirk its responsibilities in learning from these mistakes, correcting any errors, and taking any appropriate action that is needed to remove barriers to prosecution. We will do that in partnership with the Ministry of Justice, and respecting the devolution settlement. Exactly who does what and how it is done will be a matter for reflection in the coming days, and I will undoubtedly update the House in due course.

What is this about? A proposed new concordat between the British government/ Ministry of Justice and the Dept of Justice NI/ NI Executive?  Over what? How to deal with the two others who were sent letters by mistake?  A wholesale review of the administrative  scheme leading to its retrospective cancellation (political dynamite with Sinn Fein?). An attempt, surely foredoomed, to hand over  authority to Stormont?

In reply to Sammy Wilson (asking for a cancellation and complete review of the OTRs letters) she said:

“The hon. Gentleman asks about the exact steps that will be taken to ensure that errors are corrected and problematic cases dealt with. I counsel against statements of that sort at this stage. We need to be careful to ensure that there is nothing that could be said in haste, which might end up hindering rather than helping a future prosecution. As soon as I am able, I will give further information on how we intend to implement the recommendations. Today, we need to be careful about commenting on specific cases and how they will be dealt with.”

So the ball is in the unfortunate Ms Villiers’ court. Nobody will envy her as she plans her return. Of onething we can be sure: this is a  problem the Assembly is incapable of handling beyond accepting that concessions to OTRs are over. Anything further such as dealing with the past, seems a distant prospect. Try this Hallett recommendation for size:

  • The Police Service of Northern Ireland’s (PSNI) new (evidential and intelligence) review of all ‘on the run’ (OTR) cases – which was announced in February 2014 and is expected to last several years – must be subject to precise, well understood terms of reference and proper oversight.

How then can any new investigative body review the HET case load in the lifetime of one of today’s mature adults? Despite all the protestations of no amnesty, cutting  the Gordian knot with a halt  to prosecutions  due to a lack of evidence, seems the only way out in our time.

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